Why It (Formally) Matters Whether Palestine Ratifies the Rome Statute

by Kevin Jon Heller

David Bosco has an important post at The Multilateralist today reminding people that Palestine does not have to ratify the Rome Statute for the ICC to be able to investigate the situation in the West Bank and Gaza. As David notes, because Palestine has filed a declaration under Article 12(3) accepting the Court’s jurisdiction on an ad hoc basis, the Prosecutor already has the authority to initiate an investigation, should she so choose.

That said, it still matters — at least formally — whether Palestine takes advantage of its newly-recognized statehood and ratifies the Rome Statute. The Court’s jurisdiction over a situation can be triggered in three different ways: (1) a referral by a State Party; (2) a referral by the Security Council; and (3) a decision to investigate proprio motu by the Prosecutor. Procedurally, there is a significant difference between those methods: unlike investigations triggered by a State Party or Security Council referral, the Pre-Trial Chamber has to authorize a proprio motu investigation. The relevant provision of the Rome Statute is Article 15:

1. The Prosecutor may initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court.

2. The Prosecutor shall analyse the seriousness of the information received. For this purpose, he or she may seek additional information from States, organs of the United Nations, intergovernmental or non-governmental organizations, or other reliable sources that he or she deems appropriate, and may receive written or oral testimony at the seat of the Court.

3. If the Prosecutor concludes that there is a reasonable basis to proceed with an investigation, he or she shall submit to the Pre-Trial Chamber a request for authorization of an investigation, together with any supporting material collected. Victims may make representations to the Pre-Trial Chamber, in accordance with the Rules of Procedure and Evidence.

4. If the Pre-Trial Chamber, upon examination of the request and the supporting material, considers that there is a reasonable basis to proceed with an investigation, and that the case appears to fall within the jurisdiction of the Court, it shall authorize the commencement of the investigation, without prejudice to subsequent determinations by the Court with regard to the jurisdiction and admissibility of a case.

The Rome Statute’s differential treatment of proprio motu investigations is not an accident. During the drafting of the Rome Statute, some states wanted the Prosecutor to have unfettered authority to initiate investigations, while others — fearing politically-motivated prosecutions — wanted to limit investigations to referrals by States Parties and the Security Council. Article 15 reflects the compromise the drafters reached: the Prosecutor would have proprio motu power, but the use of that power would always be subject to judicial review.

Why does this matter for the new state of Palestine? Because an investigation conducted pursuant to an ad hoc declaration like Palestine’s is treated as a proprio motu investigation, so the Prosecutor’s decision to investigate must be confirmed by the Pre-Trial Chamber. That was the case, for example, in Cote d’Ivoire: once the Prosecutor decided to act on Cote d’Ivoire’s ad hoc acceptance of the Court jurisdiction (retroactive, as I’ve noted before), he submitted a formal request under Article 15 to the Pre-Trial Chamber asking it to authorize the investigation — which it did.

At least procedurally, then, Palestine does indeed have a significant incentive to ratify the Rome Statute. If it ratifies, a formal referral of the situation in the West Bank and Gaza to the Court would qualify as a State Party referral under Article 14 of the Rome Statute, exempting a decision by the Prosecutor to investigate from Pre-Trial Chamber review, By contrast, if Palestine does not ratify the Rome Statute and rests on its previous ad hoc declaration, a decision by the Prosecutor to investigate would qualify as a proprio motu investigation that would require the Pre-Trial Chamber’s authorization.

As I have pointed out numerous times before, I find it inconceivable that this Prosecutor will decide to investigate the situation in the West Bank and Gaza. But if she does, it will be easier for her to open that investigation if Palestine has ratified the Rome Statute.

6 Responses

Kevin,
A very good response to David’s article. I would add two further points.
First, A referral not only exempts the PTC review, but it also may trigger further procedural steps under article 53. If the Prosecutor decides not to investigate, the referring State may request the PTC to review the decision (or the PTC may on its own initiative request the Prosecutor to review the decision, unless it was based on the famous ‘interests of justice’). It essentially moves the PTC from being another hurdle towards investigation to being another ally in the push for investigation.
Second, while less directly relevant to your point on the benefits of a Palestinian referral, a point largely overlooked in the discussions is that any State Party could refer a situation within the jurisdiction of the Court. When one hears talk of ‘double standards’ in relation to the lack of ICC investigation, especially emanating from States not party, one wonders why these States, if they are serious, do not ratify the Statute (if they haven’t done so) and refer the situation.

1.25.2013
at 10:01 am EST David K

Sorry, I see now you’ve also addressed this issue partly in your comments on David’s article. And I mistyped: as you state, if the decision is in the interests of justice, the PTC may review the decision (not request the review). In the case of decisions on admissibility or whether there’s a reasonable basis to believe the crime has been committted, the PTC doesn’t seem to have any explicit basis in article 53 to act proprio motu (though that might not stop it), and it’s power is limited to requesting the Prosecutor to reconsider. However, the significance of this power should not be understated. If the PTC is particularly forceful in its request, it is more difficult for the Prosecutor to ignore.

1.25.2013
at 10:12 am EST David K

Kevin: this is an excellent short explanation of the legal issues involved.
An interrelated issue: would alleged crimes against humanity and war crimes by persons in Gaza also be subject to the jurisdiction of the ICC? and might come before the Court at the request of any of the 121 parties? I suspect yes.

1.25.2013
at 11:27 am EST Jordan

@DavidK — your points are well taken. I agree, especially about the “soft” effects of a request to reconsider.

@Jordan — yes, Gaza crimes could be investigated. The Palestinian declaration covers the “territory of Palestine,” which would certainly include Gaza. And Gaza certainly forms part of the newly-recognized Palestinian state.

As for a referral by a State Party — that’s a very interesting question. If Palestine ratified the Rome Statute, other States would clearly be able to refer the situation there. Moreover, I think States could refer the situation in Gaza to the Court now. Article 14(1) says that a State Party may refer a situation in which a crime has been committed “within the jurisdiction of the Court.” In light of the Palestinian declaration, crimes in Gaza are now within the Court’s jurisdiction.

Re:”Moreover, I think States could refer the situation in Gaza to the Court now”

The Rome Statute doesn’t stipulate the format for a state referral. But It shouldn’t require an engraved invitation. Jordan, Comoros, Tunisia, and Djibouti are State Parties to the Rome Statute. They are also fully represented in the Secretariat of the League of Arab States, which is not an NGO. They and the other members commissioned an international fact finding mission to Gaza headed by John Dugard. He and the Secretary of the League turned over a report to the Prosecutor outlining evidence of crimes committed by both sides which are subject to the Court’s jurisdiction.

Wikileaks published cables which indicated that Israel viewed the Palestinian Article 12(3) Declaration as an act tantamount to war. There were also press reports that the Israeli Security Services Director threatened to turn the West Bank into another Gaza unless the Palestinians delayed the vote in the UN HRC on the Goldstone report, e.g. See Akiva Eldar, “Diskin to Abbas: Defer UN vote on Goldstone or face ‘second Gaza’, PA official claims Shin Bet chief told Abbas if Goldstone vote occurs West Bank will be attacked.” Haaretz, 17 Jan. 2010

The US and Israel claim that the final status of the territory can only be decided through bilateral negotiations. But in November of 1966, the Security Council adopted resolution 228 which condemned the Israeli attacks in the Hebron area of the West Bank and characterized them as “a large scale and carefully planned military action on the territory of Jordan by the armed forces of Israel”. The ICJ’s legal analysis was also based upon the initiation of hostilities in 1967 between two High Contracting Parties to the Geneva Conventions, Israel and Jordan, and the principle of non-renunciation with respect to the protections afforded by the Conventions. The ICJ specifically noted that protections against population transfer and displacement contained in article 49(6) of the 4th Geneva Convention had been violated.

The 1993 Peace Treaty which established the international boundary between Jordan and Israel contained a stipulation in Article 3(2) explaining that it is without prejudice to the status of any territories that came under Israeli military government control in 1967.

Prof. Schabas has written about the attempts by some states, i.e. the United Kingdom and Argentina, to deposit territorial declarations that would limit the application of the Rome Statute in territories subject to their jurisdiction. But it isn’t clear that Jordan has done that or whether it should withhold the protections of Article 49(6) or the Rome Statute from territories that were subject to its jurisdiction during an unresolved international armed conflict.

1.27.2013
at 5:22 am EST hostage

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[…] "Why It (Formally) Matters Whether Palestine Ratifies the Rome Statute", Kevin Jon Heller Heller writes on Opinio Juris that while Palestine has no obligation to ratify the Rome Statute in order for the ICC to investigate Israeli crimes in the West Bank and Gaza, such an investigation will be easier to open the investigation if Palestine has ratified the statute due to the lack of a required Pre-Trial Chamber authorization. […]

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